On fractionation little progress in decades

If government officials seem all too eager to stem the fractionation of Indian lands, it's not just because the land will become "worthless," as one predicted this week, it's that they have done little to address the problem in the last 70 years.

Fractionation was known as early as the 1920s, a regional Bureau of Indian Affairs director said. At a Senate hearing on Tuesday, Wayne Nordwall proudly cited a report that was drafted in 1938 after a meeting held by Felix Cohen and John Collier, considered one of the "fathers" of modern Indian law.

"What this report is, if you tear off the cover and take away the date and you read the text and the ideas and the suggestions and the problems that were facing the Department of Interior and Indian Country in 1938," he observed, "they are the exact same problem we're talking about now."

It wasn't exactly a ringing endorsement of the BIA's less than stellar efforts to stem the increasing division of Indian land into smaller and smaller ownership interests. Neither was a 1992 report, this one by the General Accounting Office (GAO), which showed a 100 percent increase in fractionation on just 12 reservations over a six-year period.

Now, by a number of estimates, the government is confronted with a very expensive task. It will cost anywhere from $1 billion to $3 billion to consolidate every small land interest in Indian Country.

"A lot of Interior's wounds are self-inflicted," said Sally Willet, a judge who handled thousands of Indian probate cases when she worked at the department.

The BIA isn't alone in shouldering the responsibility. It was Congress, after all, that passed the General Allotment Act in 1887, ushering in the destruction of the tribal estate by parceling out land to individual Indians.

The idea was that Indians would assimilate into white society -- Congress never anticipated fractionation because Indians were supposed to disappear into local and state jurisdictions. That's why 33 state probate codes are applied -- unfairly, say government officials and tribal leaders -- to Indian probate cases today.

It's not that Congress, like the BIA, hasn't tried to reverse course. But the legislative branch hasn't been any more helpful than the executive.

Provisions in the Indian Land Consolidation Act, first passed in 1983, have been declared unconstitutional twice by the U.S. Supreme Court because they violated the property rights of individual Indians. Twenty years later, little has been done to clarify the matter, observers believe.

"Indian Country just basically cannot afford a repeat of that," said Cris Stainbrook, executive director of the Indian Land Tenure Foundation, a non-profit whose goal is to keep Indian land in Indian hands.

Amended in 2000, the act has become so confusing that the Interior hasn't certified it. Landowners, say government officials and Indian leaders, are scared they won't be able to pass on their property to direct descendants.

The first step in tackling these issues, the BIA believes, is to adopt a uniform probate code. Tribal organizations agree here although there is disagreement on the finer points of the code.

The second part is to consolidate small ownership interests. Again, the BIA and Indian Country share this goal but the methods diverge -- the BIA wants to be in charge while tribes and individual Indians want to control their own destinies.

The BIA plans to spend $21 million in fiscal year 2004 to expand a consolidation project. But the money is nowhere near enough, Nordwall admitted. It would take $144 million a year just to address the 12 reservations cited in the GAO report, he said.

To others, tribal self-determination is the key. The Rosebud Sioux Tribe of South Dakota came up with its own solution to address fractionation a half-century ago. The tribe purchases small parcels from willing sellers but tribal members still retain their interests by holding shares in a corporation-like entity.

This differs from the BIA program, under which individual Indians are effectively "closed" off and obtain no further benefit. The consolidated land is supposed to be transferred to tribal ownership.

Since 1988, the BIA has purchased about 40,000 interests in the Midwest. But an equal amount have been created so the net gain is zero, officials said.

"We're getting further behind," said Deputy Secretary J. Steven Griles at a recent hearing. "We're not able to keep up."